Thursday, March 6, 2014

No Privilege or Privacy for the Anonymous Patient

In a wrongful death case, the court of appeal partially grants a writ somewhat narrowing the scope of permissible discovery of an allegedly negligent surgeon’s files concerning his treatment of other patients. But it largely sides in plaintiff's favor by declining to reverse the whole order. In doing so, the court suggests that third party privacy and physical-patient privilege concerns can be completely obviated so long as the discovery requests permit the information to be effectively anonymized.Plaintiffs’ mother allegedly died from respiratory arrest caused by a post-operative overdose of painkillers prescribed by defendant surgeon after a hip replacement surgery he performed. The theory was that the surgeon’s assistant, not the surgeon himself, made the order for the post-operative pain meds. That would not satisfy the standard of care. In his defense, the surgeon argued that he routinely dictated drug orders to his assistant, who wrote them out and saw that they were carried out. To test the surgeon’s theory, plaintiffs sought to compel discovery of post-operative drug orders entered by the surgeon in numerous other surgeries he performed. The trial court largely granted plaintiffs’ request and defendant sought writ review.

The court of appeal rejected the surgeon’s argument that the evidence was entirely irrelevant. The surgeon put it at issue when he claimed that his common practice, i.e., his habit or custom, see Evid. Code § 1105, was to dictate them to the physician, and thus that his practice was evidence that he was not negligent in this particular case. The orders sought could potentially confirm or deny whether the surgeon’s custom and practice was, in fact, what he claimed it to be, or whether the assistant entered boilerplate orders on her own account. As to the issues in the case, however, the relevance of the drug orders was limited their sections that addressed pain management. So, to the extent that the trial court ordered the production of orders in their entirety, the writ would be granted on relevance grounds and the trial court instructed to narrow its order.

The surgeon also raised the physician-patient privilege and patient privacy concerns as reasons why the orders should not be produced at all. As to the privilege, the court relies on Rudnick v. Superior Court, 11 Cal. 3d 924 (1974)—a case permitting the production of adverse drug reaction reports over a drug company’s privilege objection, when the reports were redacted of personally identifying information. Noting a split in authority amongst several states, the court declines to impose a “blanket prohibition
against disclosure of redacted patient medical records[,]” as inconsistent with the California Supreme Court’s reasoning. The court thus holds that under Rudnick, the drug orders, redacted of any personally identifying information, are not privileged because they don’t reveal any diagnosis made regarding any particular patient. Notably, nothing about the orders provides any significant opportunity for reverse engineering of patient identity—an issue that has come up in later court of appeal cases that distinguish Rudnick.See, e.g., Binder v. Superior Court, 196 Cal. App. 3d 893, 899 (1987) (declining to follow Rudnick when the discovery sought were patient photographs). So the privilege was not implicated.

The court reaches a similar result on the objection that production would violate the privacy rights of the surgeon’s other patients. It notes that, before a court is required to engage in the balancing of privacy interests against the needs of discovery that is required under California law, a party resisting discovery must first make a threshold showing of a potentially serious intrusion into someone’s private information. Relying on the Supreme Court’s recent decision in Sander v. State Bar of California, 58 Cal. 4th 300 (2013)—a case that ordered the production of demographic and education data concerning state bar takers, redacted of identifying information—the court holds that no serious invasion of patient privacy occurs when a party produces medical records entirely redacted of identifying information or data.

Finally, the court quickly dispenses with the surgeon’s suggestion that the plaintiff needed to give consumer records notice to the other patients under Code of Civil Procedure § 1985.3. First, since the records were sought from the defendant directly, § 1985.3, which applies only to subpoenas, was inapplicable. And in any event, § 1985.3(i) specifically excludes requests for records where the custodian is required to delete “all information which would in any way identify any consumer whose records are to be produced.”